San Bernardino Drunk Driving Attorneys / DUI Lawyers

Heading a team of skilled San Bernardino drunk-driving lawyers, DUI attorney Myles L. Berman has extensive knowledge of drunk-driving laws. Because of his extensive experience on the topic of driving under the influence, he is often called upon as the drunk-driving expert lawyer. Below is the transcript of an interview of DUI lawyer Myles L. Berman by the hosts of the Frosty, Heidi & Frank Show. The hosts and our experienced drunk-driving attorney touch on many topics, including:

FM TALK STATION 97.1 – FROSTY, HEIDI & FRANK – NOVEMBER 25, 2008 12PM

DJ: WE ARE FROSTY, HEIDI AND FRANK. WHAT DID YOU DO? BRING IN AN ALLY, YOU TWO?

DJ: Yes I did. Our special guest, Myles L. Berman, here.

DJ: He’s our representation.

DJ: Yes, he’s the Top Gun DUI Defense Attorney and because you’re here, can I get you a beer, or something?

Myles L. Berman: Thank you. Let me think about it for a little bit.

DJ: I seem him there. He’s got a couple beers.

Myles L. Berman: I got two cold ones.

DJ: He’s on the clock.

DJ: You don’t mind if I have one.

Myles L. Berman: No, please do.

DUI RAMIFICATIONS IN THIS ECONOMY

With the downturn in the economy, some people have an extra drink or two to ease their minds, but as San Bernardino DUI lawyer Myles Berman points out, that extra drink is not worth a DUI arrest and its consequences.

DJ: One thing about Myles is that he’s been around since we’ve been around, really. Since we’ve been on the air… eight, nine years ago… Myles was there, sponsoring the show and sponsoring the station. He’s been one of those guys that’s always been there in the good times and the bad times. Like right now with the economy. Myles is still advertising on the station, and supporting us, which is awesome. Which means you’re doing well. I mean obviously, when times are tough people start drinking more and doing silly things so the DUI defense attorney is making some cash.

Myles L. Berman: The economy has affected everybody and what we’re seeing is the number of arrests are staying constant but the people that are getting arrested, many of them are losing their jobs, or have lost their jobs. What’s most important now to get good representation is that when the economy gets better, you don’t want to have a DUI on your record if you can avoid it.

DJ: If you’re on the bubble right now at work, the last thing you need is a DUI.

Myles L. Berman: Yeah, that’s another thing too. I think everybody right now is kind of concerned about their jobs no matter what industry they’re in. Getting arrested for DUI, I’m sure, is a basis for letting somebody go.

DJ: I want to pull you into the conversation because you’re doing well and maybe there’s family members in the Berman extended family that aren’t doing as well and so on Christmas, there’s Uncle Myles and he’s always loaded. He’s the big lawyer, he’s the big attorney and maybe there is someone in your family that’s not making that much money. Would you go ahead and spend money on their kids and not worry about what their parents thought? Like you’re not going to embarrass them because they’re having a hard time this Christmas. Would you be Uncle Myles who’s always brought Christmas to the table?

Myles Berman: Fortunately in my family, everybody seems to be doing okay. But obviously if there was anybody in need, I’d be the first one to help out.

DJ: Frank was leading the witness there (Laughter). In Myles’ family, if your family was like my family, here’s what you would find. You would find you had a sibling who was married who is making no money because in real estate they’re not selling, in Florida or anywhere. Married to someone who is also making no money because it’s a related industry. So they’re making no money. They have no money and they have two underage children who they can’t buy gifts for this year. And they have said to tell my mom that this year, no Christmas. We’re just going to be together and have the fellowship of it all. Now they have set the rules down because my sister and her husband cannot give gifts to their children this year. Now for me to show up as uncle money bags with a box full of gifts makes them look bad to their kids and to the rest of their family. So I’m going to honor what they’ve said, even though I could show up because I have a little money, I’m not going to because I don’t want to make my sister and her husband look bad in front of their children. Now do you understand why I could but choose not to give gifts this year?

Myles Berman: Sure that makes sense but did you talk to your family about that. Did you talk to your sister and mother?

DJ: My mom and I swapped emails, but if I even bring the subject up to my sister and her husband, even that is very touchy and insulting to bring up.

Myles L. Berman: Well here is the flip side. They may feel that at least Uncle Frosty is going to be here with gifts and the kids may be disappointed if you don’t do something

DJ: Yes. The kids don’t care where the gifts came from and like I was saying, he should just send them and just put from Santa. You don’t have to say that they’re from him.

DJ: And really the gifts, Frosty, are the only reason the kids like you.

DJ: True

DJ: Because they don’t even know you. They live in Florida and you live out in California. The only time they see you you’re coming through the door with bags of gifts. If you don’t come through the door with bags of gifts this time, it’s like “what the hell’s he doing here? He’s that weird uncle…”

DJ: So Myles and you guys are all suggesting that they’re anticipating, expecting and needing my gifts. That I am the savior for Christmas.

MylesBerman: Yeah.

DJ: Well, little kids want Christmas present and if their parent’s can’t do it, wouldn’t you want to at least give Christmas to those little kids?

DJ: When I was a kid—brother and sister—it was a relatively lower middle class family. It was a great family. I’m just saying they were both school teachers in Indiana. It doesn’t pay any money there, so we barely got by. We didn’t have lavish gifts for Christmas but we did have something. Now I’m picturing being back in that environment where we had nothing. Where times were so tough that mom and dad, the school teachers, couldn’t give any of us kids gifts, yet my rich uncle Art would show up—

DJ: He was your real dad though, right?

DJ: Well, maybe…

Myles Berman: So you’re projecting how you feel on your sister’s kids—

DJ: Well, of course.

Myles Berman: But they may not feel the same way, where they are not used to it.

DJ: But I understand how I would feel in that situation so it’s okay to project it. I would feel bad for my mom and dad if my uncle had showed up and showed them up with all these gifts that they couldn’t give their own children.

Myles Berman: You know, actually this is one of the advantages of being Jewish. (Laughter). So you know, I have a little bit of a difficulty relating. I think I can understand what you’re saying. (Laughter)

DJ: I thought you were Italian.

Myles L. Berman: Yeah, we didn’t really swap Christmas gifts.

DJ: That’s fantastic!

(Laughter)

Myles Berman: I had you going there pretty good, though. Didn’t I have you fooled?

DJ: Yeah! Wow!

DJ: The Bermans are only doing four days of Hanukkah this year.

Myles Berman: Where in Florida do they live?

DJ: The poor part.

Myles Berman: Anywhere near Orlando where you can take the kids to Disneyworld?

DJ: Oh, that’s good.

Myles Berman: I mean, you could do something without gifts. I mean you could do something different and accomplish the same thing.

DJ: You know, the short answer to that is they go there all the time.

DJ: Yeah, I guess if you live there it’s not special.

DJ: Well how can they go there all the time with no money?

Myles Berman: Well, how about a football game?

DJ: Frosty, a football game?

DJ: Well, what?

Myles Berman: Well, there’s Tampa Bay. There’s the Dolphins…

DJ: I don’t know…

Myles Berman: In other words, there’s something else you can do besides gifts. That’s all that I was trying to point out.

DJ: So you’re on my side, then. I shouldn’t show up with store bought expensive gifts.

Myles Berman: If you’re feeling it then there’s some justification for it. So doing nothing probably wouldn’t be the right thing, but doing something other than gifts would be appropriate.

DJ: Well, how many years. How old is the oldest. You said she was getting ready to go to college?

DJ: She’s in high school. So she’s like 16, 17.

DJ: So for like 16 years…

Myles Berman: Well, a car… is appropriate.

DJ: Yeah! A car! Uncle Myles, I like!

DJ: Then if she ever gets a DUI, she can call Myles! Perfect. It all comes together (Laughter).

DJ: No, my family doesn’t drink…

DJ: Because their livers have been taken out.

There is no good time to get arrested for driving under the influence, but having a DUI arrest at the holidays can cause additional stress to an already stressful time. If you are arrested for drunk driving in Southern California, contact Top Gun DUI defense attorney Myles L. Berman today.

DJ: You know what’s so funny though since Myles L. Berman is here and he’s been a friend of the show for 9 years or something and every time I’m watching a TV show whether it’s CSI Miami, or whatever. One of those, you know, Law and Order. And somebody gets pulled over and they’ve been drinking and they’re like, “Sir please step out of the car.” And they do the tests, I’m yelling at the TV, “You don’t have to. Do they not know they don’t have to do that?” It’s like—

DJ: You actually yell at the TV like that?

DJ: I do. Like a fool.

Myles L. Berman: You’ve gotten very educated, Heidi. Over the years and yes, I do remember when we met for dinner at a Japanese restaurant—a sushi place, in the valley. Before you guys even when on the air… or about that time so yeah, it’s been a while.

DJ: Way back.

IT’S IMPORTANT TO KNOW HOW TO CONTACT OUR SAN BERNARDINO DUI ATTORNEY

If you find yourself getting pulled over for suspicion of driving under the influence of alcohol or drugs, you won’t have time to go online to find the contact information for our experienced San Bernardino drunk-driving defense lawyer. The hosts remind you to keep this information somewhere you will be able to access it easily.

DJ: So your number is 888-4-TOPGUN.

Myles Berman: I’m sorry. Can you say that again?

DJ: (Laughter) 888-4-TOPGUN.

Myles Berman: Did you say the website, too?

DJ: Oh, I don’t have the website.

DJ: Isn’t it topgundui.com?

Myles Berman: That it! Yeah, thanks, ok.

DJ: I’m guessing you should have that number tucked away in your billfold or in your glove box, because if you’re pulled over and may start panicking—not that you’ve had anything to drink, you may not be able to regurgitate the number. So write it down. Stick it somewhere so it’s there where you need it.

Myles Berman: You know what the station—this station-has done for me—forget me—for the driving public? We have been, for years now, getting calls from people as they’re getting pulled over by the police to contact us. They actually don’t get through at that time, but nevertheless, people are calling to find out what they should do or seek legal representation, or at least opinion. And that’s directly attributable to your show and your popularity, and the station as well.

Some people might think that this interview is endorsing drinking and driving, but San Bernardino DUI attorney Myles L. Berman and the talk show hosts just want people to understand the DUI laws in California.

DJ: What’s so great, and there are a lot of people who go, “How could you? Well drinking and driving is bad!” And we all agree with that but we’re not even talking about a fall-down drunk kind of person, I mean you’re talking about… You go to sushi, and I was just having sushi last week and you know, have a little bit of sake. I have, you know, two beers with my sushi dinner and I drive home, well I’m fine, but maybe I’m not fine and I get pulled over and it’s nice to know I have somebody on my side and I can pick up the phone and call 88-4-TOPGUN and I got Myles that’s going to go, “I’ll handle it. Just don’t worry about it.”

DJ: I’ll drink to that! (laughter)

Myles Berman: What’s interesting is that I don’t think that any of us knows when we’re at a .08.

DJ: Right. You feel fine. It was two beers. I had sushi. Big deal.

Myles L. Berman: It’s an arbitrary number. It’s a political number. It’s a number that’s not going to get any lower. The liquor industry and hotel industry and bar industry and many industries are dependent on the alcohol that’s bought and served and sold in the United States. But it’s sometimes such a nebulous concept to determine whether or not you’re under the influence. Now there are times when, of course, you’re cross-eyed and you can’t stand up straight.

DJ: Then it’s obvious.

DJ: And there’s people’s tolerance as well, right?

Myles Berman: Everybody’s different

DJ: If you’re a functioning alcoholic…

Myles L. Berman: And they actually require less to drink in order to maintain their state—the alcohol in their system.

DJ: Does the penalty go up if the amount of alcohol in your system is higher?

Myles Berman: Yes it does. It does by way of programs. .15. .20 is jail time. Yeah, those are the two right now. Some states, they have what’s called extreme DUI. I think it’s Arizona if you’re a .18 you’re looking at 90 days in jail.

DJ: Oh my God. Wow!

Myles Berman: So it varies from state to state, but the higher the alcohol level is the –

Laws related to driving under the influence of alcohol or drugs not only vary from state to state, but also can change within a state from year to year. Skilled San Bernardino DUI attorney Myles L. Berman discusses the changes in how a previous DUI conviction can affect you if you get arrested for drunk-driving a second time.

Myles L. Berman: Let’s define what a win is. Let’s say that you have your second offense and your second offense is a .15 or a .10 or whatever it is and the first offense occurred five years ago. So that first offense is now part of this case. But we get that second offense reduced to either a non-alcohol-related offense or a lesser charge, or there’s no jail. We define a success by either a dismissal and acquittal or a reduction in DUI charges. So oftentimes, even with a first offense, DUI with an accident and people are injured or you’re seriously injury. But you’re able to resolve the case without any jail or prison time. So it just depends on whose ox is being gored, so to speak.

DJ: Top Gun DU I Defense Attorney, Myles L. Berman is with us. Let’s say someone had an incident years ago. It could be five, eight, ten, 12 years ago. Drunk driving, whatever. Now they get a ticket in 2008 or 2009. Is the old one still going to affect the recent one or is there a time that passes where it doesn’t count anymore?

Myles L. Berman: Right now it’s 10 years. It stays on your record for 10 years. It used to be seven years and they changed that about three years ago and they wanted to make it lifetime.

DJ: Can you get grandfathered in? (Laughter) They changed that three years ago…

Myles L. Berman: Yeah, so they compromised and made it ten years. Now in other states—and it’s on my website at one of my blogs—I think it’s Alabama or Arkansas, or one of those states over there, where they are now making it lifetime. So your third offense lifetime is a felony. In California, eventually it will be lifetime. So if somebody has a DUI 20 years ago and they get arrested 10 years from now, if they still have that record, that prior DUI will be used.

You might think you understand the legal limit when it comes to blood alcohol content level, but, as Southern California DUI defense attorney Myles L. Berman explains, it is not as cut and dry and you might think.

DJ: Now Myles, will I need to pick up the phone and call you. Let’s say I get pulled over and I’m a .05… so .08 is legally intoxicated, impaired driving and all that. What would they do to me?

Myles L. Berman: There are two ways in which they charge somebody for DUI. One is just DUI—generic driving under the influence and that can be a .05.

DJ: Really?

Myles L. Berman: Yes. And then there’s driving with a .08 or greater, so yes, we’ve seen people prosecuted under a .08. .05, .06,. .07…

DJ: So either way, call you and let you handle it.

Myles L. Berman: Yeah, there are all kinds of problems that can occur if it’s not taken care of. You can’t rely on the prosecution to make sure that you’re rights are protected, although they’re supposed to. I suppose they try to, but we’ve seen that they want to go to trial in cases where it’s .07, .08.

DJ: See, I don’t really understand that, Myles. Because if the law says it’s .08, and as Heidi says, let’s say you have one glass of wine. You’re at .04—

DJ: But I had an empty stomach or something—

DJ: But they pulled you over because you swerved because you were reaching for the radio knob or for whatever reason they pulled you over. They had a reason but you’re not inebriated beyond the point of that .08 or controlling the car. So either the .08 should or should not be the benchmark. If it’s .08, yet they can still arrest you for .04, .05, what’s the point of the .08?

Myles Berman: I’ll tell you what the point is. There are two issues. First the breath test or blood, but the chemical test is usually after the arrest. By the way people, if you’re over 21 and you get pulled over for DUI, and they want you to take a portable breath test before arrest, you absolutely have the right to refuse and we recommend you do that. Often times they have a breath test that’s taken an hour later and if that’s an .08, they’ll try to relate it back to the time of driving—or even an .07 or .06—and at the time of driving they’re going to say that you were a .08. That’s the first dynamic. The other dynamic is, I think the prosecutors have been listening to this radio show and all the other times I’ve been on the air where I believe that breath testing is based on voodoo science, so I don’t trust the reliability of the results, and so therefore, maybe they don’t. So it’s an .07 but really we’ve heard it’s not that reliable so they’re going to think it’s an .09.

DJs: Ah.

Myles Berman: Of course that’s tongue in cheek, but I actually do believe that breath tests are based on voodoo science.

If you have been arrested for driving under the influence with a BAC of .05 or even above .08, the legal team headed by Top Gun DUI defense attorney Myles L. Berman can help you. Call 888-4-TOPGUN today to get the legal representation that you need.

“SLEEPING IT OFF” IN YOUR CAR CAN STILL LEAD TO LEGAL PROBLEMS

You might think that you are doing the right thing if you have too many to drink and decide to sleep in your car until you get sober enough to drive. However, Myles L. Berman explains how sleeping in your car, even if you are parked with the car off, can still lead to a DUI arrest in California.

DJ: You know there’s something else you just said that bothers me. Frank did something nice to me about 2-3 weeks about and I rarely compliment him. But we met at happy hour after the show and he called me a cab, which I thought was a wonderful thing to do. I had only had a couple margaritas.

DJ: Oh, come on!

DJ: Okay, three or four margaritas.

DJ: C’mon, tell them the whole story.

DJ: He couldn’t stand up, I had to carry him out of the bar.

DJ: I probably would have walked home or slept if off in the car in the parking lot. I wouldn’t have driven like that, but I would have gone to the car and gotten in it, which I could be arrested for that, right?

Myles Berman: Yes… it depends. Again on the website we have an answer to that question on topgundui.com. If you’re sleeping in the car, the best thing to do is don’t put the keys in the ignition. Even lock the keys in the trunk, put them in the glove box. Get in the back seat. Don’t be anywhere behind the wheel, and you still can be arrested for DUI if a cop comes up on the scene, although it’s unfair. It really is. If a guy or woman is driving and they realize they’ve had too much to drink, they want to pull over. They’re doing the right thing. They should be able to sleep it off. The cases can be won, but you’re still subject to being arrested. So the best thing to do is what you did, Frank, which is to call a cab for Frosty. I don’t know how the cab driver reacted when Frosty was in the car, but that’s a different story. In any case-it’s always best-nobody wants drunk drivers on the road. We don’t want drunk drivers on the road. Nobody here does, I don’t. So the fact of the matter is that in Southern California, with the lack of public transportation, people are going to drink and drive.

San Bernardino drunk-driving defense lawyer Myles L. Berman briefly discusses the amount of time it takes for alcohol to appear in the system and the role it plays in a DUI arrest.

DJ: The thing that bothers me is, let’s say, Frank showed up at the happy hour and let’s say I just had one, not five margaritas, but one. And then, because I live exactly three minutes away, I had another one for the road, and chug it. So when I get home about fifteen minutes later, that’s when it hits and I get a nice buzz on my patio. Now if the cops pull me over and wait an hour before they test me, it then hits me and it looks like I was driving drunk, when in fact, no—that was my buzz from when I get home.

DJ: That’s his patio buzz!

MylesBerman: Yeah, you’re pretty accurate as far as how long it takes alcohol to get through the system. Sometimes it actually takes longer. It could be anywhere from one to three hours depending on what you had to eat, depending on what you had to drink, depending on how you drank. But the state takes a position that once you’ve had something to drink within 15 minutes it’s already in your system. Science refutes that, but that’s what the state scientists oftentimes say.

HEATHER LOCKLEAR AND DIFFERENT SOBRIETY TESTS

As explained by Southern California drunk-driving defense attorney Myles L. Berman, not all DUI arrests involve alcohol (as in the case of Heather Locklear), Because of this, police officers use more than just a breathalyzer test to check for sobriety.

DJ: And prosecutors in Santa Barbara have charged her with misdemeanor driving under the influence, citing prescription drugs.

MylesBerman: Right

DJ: So the CHP said that Locklear showed obvious impairment when an officer noticed her car parked on a highway and blocking a lane in Montecito. That’s back in September. Alcohol was ruled out. So they get her out of the car. They’re like breath test, she probably took it, and nothing. She was tested for drugs at the station. What drug test can they give you at the station?

MylesBerman: Well what they do at the station or sometimes on the street, they have what’s called a DRE—a drug recognition expert—and they come and they take a look at you. They take your vital signs. They look at your tongue to see if there’s any film on it. They look at your eyes. They take your heart beat, pulse. And then they have what’s sometimes called a pupilometer. A pupilometer is nothing but a cardboard piece of paper with little holes in it and they put it up next to the eye to see how big the pupils are and relate that. So if they’re dilated, there is an indication that there may be some sort of narcotic or some type of drug involved. But then there is a chemical test. Usually a blood or a urine test. In that particular case I think there was a blood test and then they had to wait to get the results of the blood test.

If you or a loved one has been arrested for driving under the influence of drugs or alcohol, you need the top representation, Contact Top Gun DUI defense attorney Myles L. Berman today.

PRESCRIPTION DRUGS AND DUI

When people think DUI, they often think about the consumption of alcohol or illegal substances. However, Myles L. Berman explains how even medications prescribed by your physician can lead to a DUI arrest.

DJ: But you can’t drive on prescription drugs.

MylesBerman: Well, here’s the thing…

DJ: That’s what they’re getting her for.

Myles L. Berman: If the bottle says, and the doctor says you can’t drink after you’ve taken this. Or if it makes you drowsy.

DJ: Or operate heavy machinery—

Myles Berman: Then you shouldn’t be driving. The state’s position is that you don’t have the right to drive after you’ve take prescription drugs especially if you’re told not to.

Myles Berman: In this day and age it’s anything and everything. In order for them to get the conviction they have to correlate or relate what the person had ingested to causing impairment. Now there’s problems with that. Anything that’s sold over the—booze is sold over the counter. So there’s really no distinction. Pretty much anything can impair somebody.

In another short promo, Myles L. Berman and the show’s hosts highlight their contact information for listeners.

DJ: If you’d like to call 888-520-9710 with any legal questions for Myles L. Berman. Top Gun DUI Defense Attorney, do that. Or you can email your questions to letsbefrank@msn.com. We’ll be back with the man, Myles L. Berman. We’re Frosty, Heidi and Frank.

DJ: We are Frosty, Heidi, and Frank. With us is our old friend, from the beginning of the show. Charter member of the advertisers that have supported us. We thank you for that. from the beginning he’s been with us and he still is. Myles L. Berman, that’s Top Gun DUI Defense Attorney, Myles L. Berman. Write this number down in case you need it. That’s 888-4-TOPGUN. That’s 888-4-TOPGUN.

Myles L. Berman: And it’s Myles with a Y by the way.

DJ: Oh, yeah. A lot of people probably make that mistake. M.Y.L.E.S.

Myles L. Berman: I got a reason, I won’t say it on the air, but there’s a reason it’s Myles with a Y.

DJ: topgundui.com, as well. So…

CONSEQUENCES OF NOT TAKING SOBRIETY TESTS

Top Gun DUI Defense attorney Myles L. Berman takes a call and answers questions about what tests you have to take and what the consequences will be if you refuse to take a sobriety test.

DJ: And we can take calls if you want 888-520-9710. This is your chance to get it straight from the horse’s mouth about drinking and all that if you’re pulled over. Bob in Newport Beach, what’s your question?

Bob: Hi, I’d like to know if I don’t support to any tests… urine, any of that stuff, what’s going to happen to me?

Myles Berman: Well you would think that there wouldn’t be any evidence against you. It’s more than just a test. The field sobriety test—and I assume your question is a broad question so I’ll answer it broadly. Field sobriety tests are completely voluntary. You don’t have to do them. You don’t have to tell the officer where you’re coming from or where you’re going to. The only thing is if you’re under 21 you need to take a portable breath test otherwise you’ll lose your license for a year. But what we didn’t talk about was the DMV side. So you sound like you’re older than 21 so I’m going answer it assuming that you’re older than 21. You got two cases. One would be the criminal case in court and the other one would be with the DMV. It’s much easier to beat a DUI case when there’s no evidence. Even if there is evidence, we’re still able to beat DUI cases. With the DMV, if you don’t take a breath test or a blood test, the penalties could be greater if they decide to suspend. So that’s basically the difference. And you mentioned urine test. We were so successful—we being our office, as well as other defense lawyers—getting clients acquitted who took a urine test, that it’s generally not an option. It’s just blood and breath.

DJ: You can get both from Frosty because his gums are so bad!

DJ: Well that’s funny, isn’t it?

DJ: He just blows breath and blood.

DJ: One stop shopping.

DJ: If you want a urine sample, just wring out my underwear! (laugher)

You might not realize it, but when you get your California driver’s license you imply consent that you will take a sobriety test. Also, as San Bernardino drunk-driving attorney Myles L. Berman states, you acknowledge that you were warned that killing someone while under the influence can lead to a murder charge.

DJ: So at the scene of the pulling over, you say call Top Gun rather than take the field sobriety test. When they take you downtown to the big house… the cop station, they’re going to insist you take a test there. You have to take that one, right?

Myles Berman: Well, the law requires that you take a test. And we’ve all agreed that we will take a test. And there is something else that’s coming up after the first of the year, which is similar to what we’re talking about as far as in theory. When we get our driver’s license, we imply consent. We agree that we’re going to take a chemical test—a blood or a breath test—if we’re arrested for DUI. Now what’s happening when we get our driver’s license, were also going to say that we’ve also been warned that if we drink and drive or we drive under the influence, and we go out and kill somebody, that we can be charged with murder. So this is something new and it’s very dangerous. It used to be before that you couldn’t charge somebody with murder unless you had the intent to kill somebody. Then there was a case that was decided, and it was a novel legal theory that was held up by the California Supreme Court, which is followed in almost every other state, if you’ve had a prior DUI, and therefore you went to an alcohol class and you were taught about the dangers of drinking and driving—and then you go out and kill somebody, they can imply that you had malice. They can imply that you had knowledge about the dangers.

DJ: So it’s like premeditated and that’s even worse.

Myles Berman: Yeah, this is what the government is having us do is when we get our driver’s licenses after the first of the year, that we can be charged with murder if we go out and kill somebody, even on the first offense. What’s unfortunate is that just because somebody gets involved in an accident, if they’re under the influence, they’re going to be the focus of the case. If they seriously injure somebody, or not seriously injure somebody, or even kill somebody, even though, sometimes accidents happen, where a person is driving and they run into the street. Or a person runs a stop sign or a red light and you’re under the influence and you hit them. It’s very, very dangerous and that’s why the best thing to do is not to drink and drive.

Myles L. Berman and the show’s hosts discuss how alcohol can play a factor if you get into an accident or have some minor traffic violation and why it is just better to not drink and drive no matter how you feel.

DJ: No one ever thinks about, “alright, I’ve had a couple, I can make it home.” What about the accident? The guy who hits you and gets out of the car and you smell like beer. Then he calls the cops and they show up and the accident wasn’t even your fault. Now it is your fault because you’re the one that had a couple of beers. Even though that person ran the red light or did whatever, right?

Myles Berman: The only reason in my mind—I’ve been doing this so long… the number of people who are stopped and arrested for DUI, or investigated for DUI, or even given tickets, is directly related to the number of police officers on the street. It is almost impossible to drive more than a block without violating some type of vehicle code violation. So if there are more cops on the street, more police officers on the street, there will be more people arrested, less people… probably less people drinking and driving.

DJ: There are a lot of cops in Burbank. (laughter)

BREATHALYZERS AND THEIR INCONSISTENCIES

There are various models of breathalyzers used by law enforcement; however, not everyone (including DUI defense attorney Myles L. Berman) trusts in the validity of breathalyzer tests.

DJ: I have a question for you. Are you familiar with the type of breathalyzer that the CHP and the LAPD use?

Myles Berman: Yes. There’s many different kinds.

DJ: Is it the Intoxilyzer 5000? Are you familiar with that particular brand?

Myles Berman: I am. I actually have one. Not a 5000 but I have a different machine in my office.

DJ: Well, here’s a defense that is being used by a lawyer in Connecticut. His client was pulled over and had a blood alcohol level that was based on this Intoxilyzer 5000 breathalyzer of—

Myles Berman: This is what Orange County used to use.

DJ: Of .18, and in Connecticut .08 is the legal limit. He blew a .18. And this guy, Tyrone Brown, happens to be a black dude, and his lawyer is saying that the Intoxilyzer 5000 is a racist machine.

DJ: What?

DJ: Have you heard this defense?

Myles L. Berman: No. I can give you what I think the logic would be.

DJ: This is interesting. He’s saying that it’s basically KKK in a box. This Intoxilyzer 5000. He claims that uh—

Myles L. Berman: I don’t know that there’s been a breakdown of races but there’s a lot of white people that get arrested for DUI.

DJ: He’s saying that this thing only registers well for white people. He’s saying that the lung capacity of a black man is three percent smaller than a white man, and therefore, and black men’s test results vary from the sobriety standards set by the device. This guy has a doctor who is a lung physiologist and he’s examined the research and he’s willing to testify in Tyrone Brown’s case, saying that he has determined that the Intoxilyzer 5000 does not effectively test the blood alcohol content of black men.

Myles L. Berman: Well, I assume that’s where you were going with that. That breath test machines and the way the law is, it treats all of us equal. All four of us in here don’t have the same lung capacity, don’t have the same metabolism, don’t have the same physiology. As a matter of fact, I don’t mean to point to you, Heidi—

DJ: No, it’s fine.

Myles L. Berman: But sometimes when women have their period, their body temperature—no I don’t want to talk (Laughter)—their body temperature is elevated.

DJ: Go ahead. This is interesting.

Myles L. Berman: The lawyer is correct in that the machine does not take into account the individual characteristics of the person who is blowing into the machine. I have not heard—well actually I just heard two minutes ago—that the lung capacity of blacks is three percent less. But it doesn’t surprise me. I’m not going to go any further with this argument. Howard Cosell and other people got kicked off the air for going further but I do believe that there is merit to the argument that at least his particular client does not fit into the data that was input into the machine, or calibrated to the machine, for the lung capacity of his client. That I would have no problem with.

DJ: So if we get up—we’re all different. Let’s say we all have one shot of whiskey. Frank hasn’t eaten at all today. I had breakfast and then I had oatmeal for lunch and Frosty maybe hasn’t eaten anything but he’s heavy. And then you, whatever your story is. So we’ve all had the exact same amount of alcohol and we’re probably going to blow completely different numbers.

Not all alcohol is created equally. Myles L. Berman discusses the differing effects of various types of alcohol.

Myles Berman: Well, that’s the problem with this being so objective as opposed to subjective. The four of us could be sitting here having the same—you guys are a little bit ahead of me but (laughter)—amount of beer or alcohol or whatever it is. And by the way, one 12 ounce can of beer equals one four ounce glass of wine, which also equals one shot and a quarter—one ounce and a quarter—of 80-proof liquor, which is also on my website, topgundui.com.

DJ: And we’ve had that argument before with Franky. You get drunker on whiskey but I guess you—

Myles Berman: No. No. As a matter of fact, wine is very potent. You drink 12 ounces of beer, as opposed to four ounces of wine. Most people don’t usually drink 80-proof liquor straight, so it’s usually mixed. So you could end up with—unless it’s a double or triple—you could end up with six ounces of liquid in an 80-proof drink. But a four ounce glass of wine, and for some reason women like wine.

DJ: I’m a wino. A bottle a night. I don’t drive though, I stay home and pass out on the couch.

If you or a loved one has been arrested for a DUI in California, call 888-4-TOPGUN to get the support of a highly skilled and knowledgeable team of drunk-driving defense lawyers.

WHAT COPS ARE LOOKING FOR WITH EYE SOBRIETY EXAM

There are various forms of field sobriety tests. Our skilled San Bernardino DUI attorney discusses the eye examination and its flaws.

DJ: Myles L. Berman is with us. Top Gun DUI Defense Attorney Myles L. Berman. Now you’ve been with us several times throughout the years. For those of you who have not heard this question before, check out this morsel of knowledge. When you are pulled over and they give you the eye exam and they look at your eyes—for those who haven’t heard this, Myles—tell us what they’re looking for and tell us why that’s not necessarily a reliable indicator of whether or not you’re inebriated.

Myles Berman: What they’re looking for is called horizontal gaze nystagmus, which is also known as HGN. And what they’re looking for is the involuntary jerking of the eye when the eyeballs follow a stimulus passed across their face to the left or to the right. There are many different reasons for the appearance of horizontal gaze nystagmus to be present. First, studies show it’s present in four percent of the population. And that may not seem like a lot, but if you’re one of the four—

DJ: When they are sober, right?

Myles L. Berman: Correct. Or alcohol free. Four percent of the population has it and that means that any one of us could be one of the four. Also, police officers when they have their overhead lights going. The strobe lights or the overhead lights often create the appearance of horizontal gaze nystagmus. There’s other reasons, but the bottom line is, at most, all that means is the person has the presence of alcohol. Now what the cops like to do is when the eyeball jerks, at the angle the eyeball jerks, to determine and correlate that to what the alcohol level is. That’s such nonsense and there is absolutely no way there is any accuracy and the courts have held that there isn’t any accuracy to that.

DJ: Then why do it? Why do they waste their time doing it when they know it’s not going to hold up?

DJ: Because not everyone uses Myles L. Berman.

DJ: Well, that’s true.

Myles L. Berman: Actually for us it shows that the client is sober because the person has to keep their head perfectly still and when they’re standing and doing this test, they’re not swaying they’re not weaving, they’re not going in a circular motion. That’s consistent with someone who is totally sober. No to mention they can actually follow the instructions.

Sometimes police officers ask you to say the alphabet (sometimes backwards) to prove your sobriety. Myles L. Berman outlines his issues not only with the need to recite the alphabet, but also with other tactics used by police during field sobriety tests.

DJ: Is it true that when the cop asks you to do the alphabet—

Myles Berman: Forwards or backwards? (Laugher) I was trying a case once, and cops require you to—when they have you do the alphabet—don’t sing it. And the reason is, it makes it more difficult. So I was arguing this to the jury about how the officer was trying to make it more difficult for my client, and by the way, did you know that the song for the alphabet is the same as twinkle, twinkle little star? (Laughter) And it just hit me while I was doing that, and I started singing twinkle, twinkle little star to the jury (laughter). And they’re shaking their heads, “yeah, yeah, yeah…” I’m sorry. Go ahead… this is before they acquitted my client.

DJ: Okay, good. I thought this was a trick question because if the cop says to do the alphabet backwards, maybe they’re trying to trick you into saying, “I can’t do it sober,” which is an acknowledgement that you’re drunk.

Myles L. Berman: you know I’ve heard stories about it and I don’t recall if I’ve seen a case where they’ve had to do the alphabet backwards, but they say they’ve had to do that. But when they do the alphabet, it’s because they want to see whether or not they can do the alphabet as if somehow there is a correlation between being able to do the alphabet and being under the influence. Now switch that to walk the line, or tough your finger to your now. I have never in my entire life—and I’m going to look again when I’m on the freeway—driving down the freeway looking to my left and looking to my right to see if there is anyone with their head tilted back, eyes closed, toughing their finger to their nose while they are driving. (laughter) You’re nervous. People get stopped for running a red light. Can you imagine what it’s like being told, “get out of the car.” And your wife and your friend or your family is in the car and it’s two-o-clock—and the weather right now is really cold, so it’s even… Can I put on my jacket? No.

DJ: Now I’m freezing cold, shivering. Or it could be windy.

Myles L. Berman: Women in high heels, men wearing shoes with holes in them, you know.

San Bernardino DUI attorney Myles L. Berman and the show’s host, remind everyone to be safe and to not drink and drive.

DJ: The point is of course. Don’t drink and drive. Call a cab, but if you are pulled over call Top Gun DUI Defense Attorney Myles L. Berman at 888-4-TOPGUN. Or go to his website to answer any questions we didn’t get to today, and the website:

Myles L. Berman: topgundui.com

DJ: Thanks for coming in, man.

Myles L. Berman: Thanks for having me. Remember it’s Myles with a Y.

DJ: Everybody be safe over the holidays and if you happened to get in a little trouble, give Myles a call.